Earlier this month, Harvey Weinstein’s legal team submitted a 166-page brief to appeal against his conviction for rape and sexual assault.
One of the grounds for appeal was that the defence’s experts were “improperly barred from rebutting the testimony of the prosecution's witnesses.” Namely, they wished to admit experts to bring into doubt the testimony of Dr Barbara Ziv, a forensic psychiatrist and expert in sexual assault and rape.
Dr Ziv outlined a series of common myths about rape and memory in her testimony, countering widely held beliefs that are contradicted by statistical evidence and emerging research. These myths include; that rape is perpetrated by strangers, that victims fight back during the assault, and that victims promptly report the crime and cease contact with the perpetrator after the assault.
The defence have stated that Dr Ziv ‘bolstered the credibility’ of the complainants in the case by doing so. Per their submission:
The court’s rulings resulted in the People’s expert being permitted to pontificate about her opinions, cherry-picking data to comport with those opinions, and allowing it all to masquerade as “science” or “truth.”
Their objections extend to not being able to call Dr Elizabeth Loftus and Dr Debbie Davis to testify that women consent to sex and then come to misremember it falsely as rape.
Dr Loftus was able testify on memory more broadly for the defence, but she and Dr Davis were prevented from testifying on memory for sexual encounters. This is because their ideas about disputed sexual encounters have no evidentiary basis.
Dr Loftus has regularly testified in trials of varying types, over 300 times since 1975, predominantly for the defence (she states it may be ‘five or six times’ for the prosecution). She authored the book ‘Witness for the Defense’ in 1991.
More recently, her position (along with Dr Davis) has been to argue that women can consent to sex and, particularly if they are alcohol-intoxicated at the time, are then liable to develop false memories that the sex was non-consensual. This is a defence argument in sexual assault cases.
Let me be clear, the idea that alcohol or drugs can encourage false memories of a sexual assault is a myth and is not a true reflection of the academic literature.
There is no empirical research showing that women who drink alcohol during a sexual encounter are liable to consent to sex and then later develop a false memory that, actually, they were raped.
Studies that have looked at “false memory” alongside alcohol intoxication have used mock crime and non-crime scenarios, and testing methodologies nothing like real world police questioning techniques. There have been 10 studies of this kind, and seven of them found that alcohol did not increase false memory susceptibility. One study even showes that alcohol intoxication can reduce susceptibility. Of the remaining three studies that found positive effects, two did not experimentally control alcohol intoxication, and the other found increased susceptibility only when participants were intoxicated during the event and when they were tested.
Taken together, statements from this body of work regarding alcohol’s effects on false memory and suggestibility would be prejudicial and confusing to fact finders if applied to sexual encounters and rape complainants in the legal system.
This is not a matter of competing scientific viewpoints of equal weight.
Of course, it matters that we investigate and interrogate the position of those who provide scientific context and their objectivity, that goes for Dr Ziv too. But the judge was correct to take this stance because admitting those who promote myths about rape and memory without a robust evidence base would be dangerous.
Really, what the defence are looking to do here is put science itself on trial. It has echoes of the language used by pandemic-doubters and climate change deniers, presenting one-offs and anomalies to cast doubt on overwhelming consensus.
Their objections make this approach clear. They wish to challenge the victim’s testimony by casting just enough doubt on the accuracy of their memory. For those who follow trials of rape and sexual assault, this is a familiar battleground.
Alongside their baseless challenges around intoxication and false memory, Weinstein’s legal team is contesting the assertion made by Dr Ziv that people do not lie about rape. The evidence says that, while people have the capacity to lie, it is extremely rare that they lie about rape. We can say with confidence that it is unlikely that people are lying in rape cases, and we can point to specific aspects of the case at hand that reinforce this point – for example, there are multiple complainants.
They also question the idea that memories can be sustained over decades, particularly regarding the testimony of Annabella Sciorra. But we know that memories, particularly traumatic memories, can be persistent. Even when peripheral details can be forgotten, the salient, central information about events remains. Ask any holocaust survivor, or prisoner of war.
What the defence are looking for here is anomalies. If any one study supports their position about false memory, it does not matter that more do not. Put simply, if people are capable of misremembering, then they could be misremembering here in this case too. But is that really a scientific statement, let alone one worth hiring a memory expert to make?
We have come a long way in our understanding of memory. We know considerably more now than we did 20 years ago. Yet, as we see in the arguments put forward in this case, we are still deferring to decades-old legal precedents built on myths that should have been long superseded by the advances made in science.
As a scientist I am naturally averse to absolutism. It is why we talk in terms of confidence and probabilities, but rarely state certainties. Our role is to assess the broader evidence base and then constantly challenge our stance as more quality studies come to the fore.
Perhaps the result of that is that we still give air to myths and misconceptions about memory that only exist in anomalies.
The Weinstein case, and the discussion around memory function in victims of sexual assault, highlights this uncomfortable relationship between science that seeks broad consensus and a justice system that still rewards those hypotheticals and anomalies.
This is a significant reason for why prosecution rates for rape are so low. According to RAINN (Rape, Abuse & Incest National Network), only 2% of reported rapes lead to prosecution. (It is estimated to be closer to 0.5% of all rapes, including those that go unreported).
That the Supreme Court sticks to its guns is essential because this the ramifications of this case reach well beyond Harvey Weinstein. Setting a new precedent in which memory experts, used by either the defence or prosecution, must provide more rigorous and directly relevant evidence to support their claims would go a long way to reforming how the justice system addresses rape and sexual assault cases.
It is beyond time for our courts to reflect what the science really tells us about memory and witness testimony.
*This blog was revised on 20/04/21 to clarify the types of trials in which Loftus testifies following a request from her, and on 27/04/21 to include a link to the review article on false memories and alcohol to which the blog refers, and to note these changes have been made. Previous versions of this blog are timestamped and archived on Wix.com servers.